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RECEIVED FOR FILING
OAKLAND COUNTY CLERK
2004 NOV 17 P 4:04
BY: s/ [illegible]
-------------------
DEPUTY COUNTY CLERK
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
THE SCO GROUP, INC.,
A Delaware corporation,
Plaintiff,
vs.
DAIMLERCHRYSLER CORPORATION,
a Delaware corporation,
Defendant.
Case No. 2004-056587-CK
Hon. Rae Lee Chabot
Hearing Date: November 24, 2004
-----------------------------------------------------
JOEL H. SERLIN (P20224)
BARRY M. ROSENBAUM (P26487)
Attorneys for Plaintiff
2000 Town Center, Suite 1500
Southfield, MI 48075
(248) 353-7620
JAMES P. FEENEY (P1335)
THOMAS S. BISHOFF (P53753)
STEPHEN L. TUPPER (P53918)
Attorney for Defendants
39577 Woodward Avenue, Ste. 300
Bloomfield Hills, MI 48304-2820
(248)203-0700
-----------------------------------------------------
MOTION FOR STAY OF PROCEEDINGS
------------------------------
NOW COMES Plaintiff The SCO Group, Inc., by and through its attorneys,
Seyburn, Kahn, Binn, Bess & Serlin, P.C., and move this Honorable
Court to stay the proceedings in this matter for a period of time to
be determined by the Court for the following stated reasons:
1. On March 3, 2004, Plaintiff The SCO Group, Inc. ("SCO") filed a
Complaint in this matter alleging that Defendant DaimlerChrysler
Corporation ("DCX") had breached a license agreement between the
parties, governing the use of SCO's UNIX computer operating system.
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2. Specifically, SCO alleged that DCX, as an end-user, had failed to
comply with the agreement's certification requirements governing its
use of the UNIX operating system, by failing to respond to SCO's
request that DCX so certify its compliance with the terms of the
license agreement between the parties.
3. On August 9, 2004, this Court, pursuant to a motion filed by DCX,
entered an Order Granting in Part and Denying in Part Defendant's
Motion for Summary Disposition ("Order"), holding that DCX had
satisfied its certification obligation, but finding an issue of fact
as to whether DCX had been timely in serving its certification upon
SCO.
4. The remaining claim is scheduled for case evaluation on November
30, 2004 and trial on January 11, 2005.
5. SCO is currently engaged in litigation in the United States
District court for the District of Utah with International Business
Machines Corporation ("IBM") over the interpretaion of a license
agreement between SCO and IBM that is substantially similar to the
license agreement in the case before this Court. That case is SCO
Group, Inc v International Business Machines Corporation,
No. 2:03CV294.
6. IBM has argued that the license agreements, contrary to their
express terms, protect against only the literal copying of UNIX source
code, while SCO has argued that the protections sweep broader, to
protect, among other things, all modifications and derivatives
prepared by licensees based on the original UNIX source code. IBM has
filed a motion for summary judgment based on its interpretation of the
license agreements, which motion is currently being briefed. No
hearing date has been set on the motions, but it is likely that they
will be heard sometime early next year.
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7. A ruling in the IBM case will provide important guidance
concerning the obligations of end users like DCX under the
certification requirement at issue here. Specifically, as noted
above, a resolution of the contract-interpretaion issue currently
pending in the IBM case will permit all parties to know with some
certainty the scope of the obligations and restrictions under the
license agreements to which licensees must certify their compliance.
8. Given this Court's narrow interpretaion of the certification
requirement contained in the license agreement, it may no longer be
productive for SCO to attempt to gather information from UNIX end
users by means of requests for certification until a ruling on the
contract issue in the IBM case is forthcoming.
9. Moreover, if SCO's interpretation of the license agreement is
rejected by the court in the IBM case, SCO may choose never to
litigate the sufficiency and timeliness of certification prepared by
DCX and other end users of the UNIX operating system.
10. SCO is engaged in two other diputes relating to its UNIX rights in
federal court in Nevada and Delaware. Both of these cases have been
stayed by the respective federal judges pending the resolution of the
key issues in the IBM case. Copies of the stay orders from these
Courts are attached hereto.
11. In the two cases that have been stayed, SCO has been filing
court-ordered periodic reports on the progress of the IBM case.
12. It would be a waste of valuable judicial and attorney resources
to proceed with a case evaluation and a trial on SCO's remaining
damage claim as to timeliness, followed by an appeal of this Court's
order regarding the sufficiency of DCX's certification, when these
issues may become moot upon the conclusion of the pending summary
judgment proceedings in the IBM case.
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13. Courts have the inherent power to control their dockets, and a
motion for stay is directed to the court's sound discretion. Amersham
International PLC v Corning Glass Works, 618 F Supp 507, 509 (ED Mich,
1984).
14. SCO requested that DCX consent to a stay of proceedings in
October, 2004, but DCX indicated it would not consent to a stay; DCX
has further stated that if SCO does not intend to pursue the claim as
to the timeliness of DCX's certification at this time, then it insists
that SCO dismiss its remaining claim with prejudice.
WHEREFORE, Plaintiff The SCO group, Inc. respectfully requests that
this Honorable Court stay the proceedings in this matter for a period
of time to be set by the Court.
Respectfully submitted,
SEYBURN, KAHN, GINN, BESS AND SERLIN, P.C.
By: s/ Barry M. Rosenbaum
----------------------
Barry M. Rosenbaum (P26487)
Attorneys for Plaintiff
2000 Town Center, Suite 1500
Southfield, MI 48075-1195
(248) 353-7620
Dated: November 17, 2004
Steven I. Froot, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner
570 Lexington Avenue, 16th Floor
New York, NY 10022
(212)-446-0230
Mark J. Heise, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner LLP
Bank of America Tower
100 South East 2nd Street, Ste. 2800
Miami, FL 33131
(305) 539-8400
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